Metro. Life Ins. Co. v. Johnson

• Decision Date: 19 April 1911
• Docket Number: No. 6,915.,6,915.
• Citation: Metro. Life Ins. Co. v. Johnson, 49 Ind.App. 233, 94 N.E. 785 (Ind. App. 1911)
• Parties: METROPOLITAN LIFE INS. CO. v. JOHNSON.
• Court: Indiana Appellate Court

49 Ind.App. 233

94 N.E. 785

METROPOLITAN LIFE INS. CO.

v.JOHNSON.

No. 6,915.¹

Appellate Court of Indiana, Division No. 1.

April 19, 1911.

Appeal from Circuit Court, Cass County; John S. Lairy, Judge.

Action by Samuel M. Johnson against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.Myers & Yarlott and Paul M. Souder, for appellant. Geo. A. Gamble, for appellee.

FELT, J.

Action by appellee against appellant to recover upon a policy of industrial insurance issued upon the life of appellee's wife. Judgment for $137.79, from which this appeal is taken.

The complaint is in one paragraph and in the usual form on such contracts. Appellant filed affirmative answers in three paragraphs. These answers admit the main allegations of the complaint, but seek to avoid liability by special averments relating to the application and policy.

The first paragraph of answer avers, in substance, that the contract expressly provides, as a condition to the execution of a valid contract of insurance upon the life of appellee's wife, that “no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health,” and also, that the policy is issued and accepted upon the conditions following: “First. This policy is issued upon application which omits the warranty usually contained in applications, and contains the entire agreement between the company and the assured and the holder and owner hereof. *** Second. Unless otherwise stated in the blank space below, in a waiver signed by the secretary, this policy is void if the insured before its date *** has been attended by a physician for any serious disease or complaint, or has had before said date *** cancer, or disease of the heart, liver or kidneys.” And appellant avers that on September 5, 1904, said insured was not in sound health, and she had been constantly attended and treated by a physician for a general syphilitic condition of her system, seriously affecting and imperiling her health, and for fibroma, or tumor of the uterus, and for a most serious and usually fatal disease, to wit, cancer of the uterus, seriously affecting her health and imperiling her life for more than one year prior to said date, and of which malady she, said insured, died March 27, 1905, which conditions of said policy and contract were not waived by the appellant.

The second paragraph is the same as the first, except it alleges that on August 27, 1904, the assured, knowing she was not in sound health, but afflicted as aforesaid, applied for insurance to appellant, and in her application, in answer to one question, viz., “Names of all physicians who have attended within two years and for what complaints,” she stated, “None,” when in truth and fact she had been under constant medical treatment by two physicians for more than one year continuously next preceding said date for the diseases aforesaid; that her answers were knowingly false, and she fraudulently concealed the truth from appellant for the fraudulent purpose of procuring the insurance; that the policy was issued on September 5, 1904, in ignorance of the facts and of said false representations aforesaid and would not have been issued but for said concealment and false representations aforesaid.

The third paragraph of answer differs from the first in this: That it makes a copy of the application a part of the pleading and avers that it was the basis upon which the policy was issued. That she was asked and answered the question shown in the second paragraph. That from May 7, 1903, to the time of making the application for said insurance, she had been attended by two physicians and treated for subinvolution of the uterus, and for fibroma or tumor of the uterus, and for carcinoma or cancer of the uterus, a most serious, dangerous, and fatal disease, of so grave a character as to require an operation on December 17, 1904, for the removal of part of the organ. That her death on March 27, 1905, resulted from said diseases from which she was suffering when the insurance policy was issued to her. That it was provided in said policy: “That said contract shall be void, if the insured, before its date, has been attended by a physician for any serious disease or complaint, or has had, before said date, any *** cancer, *** unless upon a disclosure of said conditions, a waiver thereof be signed by the secretary of the defendant.” That said insured was not, when said policy was issued, in sound health, but was then, and had been for 18 months, suffering from and receiving treatment for a most serious and fatal disease, to wit, cancer of the uterus, which conditions were not disclosed by her, and were not disclosed until after her death, and appellant had no notice or knowledge thereof, and did not waive the conditions so existing.

Demurrers for want of facts were addressed to each paragraph of the special answers, and overruled as to the first and second and sustained as to the third. Appellee replied to the answers by general denial and by special reply in two paragraphs.

The second paragraph of reply to the first paragraph of the answer alleges, in substance: The insured did not make application to become a policy holder of appellant; but she was repeatedly importuned by appellant to execute the insurance contract sued on, and finally yielded and consented to the execution of the policy. That the insured was examined on August 27, 1904, by a physician employed by appellant for the purpose of ascertaining the state of her health, and this physician, after having made such examination, recommended to appellant that she was in good health and a first-class risk. That the cost of the insurance was 25 cents per week during the continuance of the policy. That the contract of insurance was executed and delivered on September 5, 1904. That appellant knew the state of health of the insured before and after the policy was executed and delivered, accepted payment from the insured of all the premiums, and did not make any objection to her state of health or cancel the policy, but continued to collect the premiums, collecting the last one on March 27, 1905, the day she died, at which time appellant promised the appellee that the policy would be paid within three days. That appellant frequently saw and talked with the insured, and on October 31, 1904, the insured gave notice to appellant that she was unwell, but appellant took no steps to cancel said policy, but continued to collect the premiums as hereinbefore recited; thus treating the policy as valid. Appellee expressly denies that the insured was not in sound health on September 5, 1904, and prior thereto, and denies also that the insured was treated by a physician for the diseases alleged in appellant's answer, and affirms that the insured was not under the care of any physician, and no physician ever disclosed to the insured that she was afflicted with such diseases. Appellee also denies all other material allegations contained in the first paragraph of answer, not already admitted as true, and avers that by collecting and retaining the premiums appellant caused the insured to believe that the policy was valid, and has not returned or offered to return said premiums.

The third paragraph of reply is addressed to appellant's second paragraph of answer and contains substantially the same allegations as the second paragraph, and in substance the following: That the insured was ignorant and unable to read or write and put her faith in appellant's physician, who read the answers to all questions embraced in the exhibit indicated by “Questions to be Asked by the Medical Inspector”; that the physician did not read the questions to the insured or give her any instructions concerning the questions or answers; that she depended solely upon appellant's physician to decide whether she was a fit subject for insurance, and, after having made this examination, he recommended to appellant that she be accepted as a first-class risk, in sound health; that the physician wrote the answers to the questions propounded in the exhibit; that appellant knew the true state of health of the insured before and after the policy was executed, and by appellant's solicitation and collection of premiums, and by making no objections to the validity of the policy, induced the insured to believe the policy was valid, whereas, if appellant had not by this conduct induced the insured to believe the policy valid, she would not have paid any premiums, nor accepted the policy; that, when the insured first took sick, she notified appellant of that fact, and still appellant did not cancel the policy, but continued to collect the premiums, and appellee expressly denies that on September 5, 1904, the insured was afflicted with any diseases imperiling her life, or that she was not then in sound health.

Demurrers for want of facts were addressed to each of the special replies and overruled with exception.

The rulings on the demurrer to the third paragraph of the answer and to each paragraph of the special reply are assigned as errors; also, overruling the motion for judgment on the answers to the interrogatories, and for a new trial.

The motion for a new trial alleges error of law and insufficiency of the evidence, the giving and refusal of certain instructions, admitting and excluding certain evidence, and overruling appellant's motion to discharge the jury.

The jury, in answer to interrogatories, found that the decedent did not have any of the diseases charged in appellant's answers, and found the facts substantially as alleged in appellee's special replies. They found that she was not afflicted with a disease seriously affecting her constitution, on and before the time the policy was delivered to her, and that she was not attended by a physician, prior to the making of the application for her insurance, for any disease sufficiently...